Kekana medical records fight opens week two of Matlala trial-within-a-trial

Musa Kekana returned to the witness box at the Johannesburg High Court on Wednesday, where the State and his lawyer argued over whether hospital records can be used to test his credibility, a dispute that will help decide what evidence survives into the main trial.

The records were placed before the court by the defence and admitted as Exhibit N. State counsel wants to refer to entries in them while cross-examining Kekana, to test whether the account he is giving now matches what he told medical practitioners at the time.

Kekana’s lawyer, Riaan Gissing, objected. He argued that the entries amount to hearsay and cannot be treated as proof of what happened unless the doctors who wrote them are called to testify. The dispute centres in part on an entry recording a medical admission on 3 March 2024, about five weeks before Kekana was arrested on 17 April 2024. Gissing questioned the relevance of that earlier admission and challenged the State’s reliance on the notes.

As the Mail & Guardian reported on 16 September, the court was expected to rule on the admissibility of the records on Wednesday while cross-examination continued.

What the trial-within-a-trial is for

South African criminal procedure allows a court to pause the main trial and hear evidence on a single disputed question first. Here that question is whether Kekana’s arrest was lawful, and whether the evidence obtained afterwards can be used against him. The defence wants that evidence excluded from the attempted murder trial.

Kekana has told the court that police assaulted him during his arrest and later suffocated him several times with a plastic bag. He also alleged that he was threatened with a firearm and questioned about firearms while at his home. Police witnesses have disputed his account.

The outcome matters beyond this courtroom. When a court excludes evidence because of how it was obtained, it is applying the Constitution’s promise that everyone has the right not to be detained arbitrarily and not to be treated or punished in a cruel, inhuman or degrading way. How strictly courts police that line determines what a police search or arrest is worth in court, and whether a prosecution built on it can stand.

Why the medical notes matter

Medical records are among the most contested documents in South African criminal trials. They are usually written by a doctor or nurse for treatment, not for litigation, and they often contain what a patient said rather than what a clinician independently observed. That is the heart of Gissing’s objection. If the State wants to use the notes to show that Kekana said something different before, the person who wrote the note would ordinarily have to come to court and be questioned about it.

The State’s position is narrower. It is not asking the court to accept the entries as proof of what happened, but to put them to Kekana so he can explain them. Courts weigh those two uses differently, and the ruling will say which applies here.

The case is being heard at the Johannesburg High Court, which sits in the city centre and handles the province’s most serious matters. The court has not yet delivered its ruling on the records.

What happens next

Kekana’s cross-examination continues, and the court is expected to rule on whether the State may use the medical records in that cross-examination. The main attempted murder trial against him remains on hold until the trial-within-a-trial is finished.

Source: Mail & Guardian, Court considers use of Kekana’s medical records.